Articles Posted in Employment Discrimination

Co-op activismThe National Labor Relations Act (NLRA) regulates numerous interactions related to to labor organizing. It allows employees to assert New Jersey sex discrimination claims against both employers and unions for unfair labor practices. Labor unions’ obligations under the NLRA include a duty of fair representation. A recent decision by the National Labor Relations Board (NLRB) addressed an employee’s claim that a labor union breached this duty by discriminating against her on the basis of sex. The ruling harshly criticized the administrative law judge (ALJ) who ruled in the union’s favor. The NLRB vacated the ALJ’s ruling, finding that he “erred by relying in part on improper bases in making his credibility determinations.” International Longshoremen’s Association, Local 28 (Ceres Gulf Inc.) (“ILA”), 366 NLRB No. 20 at 1 (Feb. 20, 2018).

Labor organizations commit an unfair labor practice when they “restrain or coerce employees in the exercise of the rights guaranteed” by the NLRA. 29 U.S.C. § 158(b)(1)(A). Courts have identified specific ways that labor unions might unlawfully interfere with employees’ NLRA rights. The U.S. Supreme Court has held that a union has a duty “to represent nonunion or minority union members…without hostile discrimination, fairly, impartially, and in good faith.” Steele v. Louisville & N. R. Co., 323 U.S. 192, 204 (1944). A union violates the duty of fair representation “when it acts in a manner that is ‘arbitrary, discriminatory, or in bad faith.’” Vaca v. Sipes, 386 U.S. 171, 207 (1967). The NLRB views a breach of the duty of fair representation as an unfair labor practice.

The charging party in ILA has been a member of the union since 2001, usually working as a truck driver. According to the ALJ’s ruling, she began receiving union work referrals again in 2015 after an eight-year “union employment break.” ILA at 2. She alleges that she asked the union’s training coordinator to put her in training classes offered by the union several times during 2016, but he refused all of her requests. She further alleges that the coordinator sexually harassed her “when she periodically stopped by [his] office to request training.” Id. at 3. She allegedly made 36 requests for training, and she experienced sexual harassment while making 10 of those requests. She filed a complaint with the NLRB, alleging breach of the duty of fair representation through sex discrimination. She claimed that the coordinator denied her training opportunities because of her sex, and also because she refused his advances.

ToyotaFederal and state laws in New Jersey protect the rights of people with disabilities to have fair access to employment and to accommodations in the workplace that allow them to do their jobs. The Americans with Disabilities Act (ADA) of 1990 prohibits discrimination on the basis of a disability and requires employers to make reasonable accommodations for workers who are dealing with a wide range of disabilities. Since the ADA is a federal statute with nationwide reach, lawsuits and court rulings in other states can potentially affect New Jersey disability discrimination laws. Two recent ADA lawsuits illustrate how the statute can help New Jersey workers. One case involves an alleged refusal to hire an applicant because of their participation in an addiction recovery program. Equal Emp’t Opportunity Comm’n v. Volvo Group N. Am., LLC, No. 1:17-cv-02889, consent dec. (D. Md., Jan. 12, 2018). The other involves an alleged failure to engage in ADA-required processes regarding a request for an accommodation. McClain v. Tenax Corp., No. 1:17-cv-00049, order (S.D. Ala., Jan. 12, 2018).

The ADA’s definition of “disability” includes both “physical [and] mental impairment[s]” that are severe enough to “substantially limit[] one or more major life activities.” 42 U.S.C. § 12102(1)(A). It includes both “actual or perceived” impairments, meaning that a person who does not have a disability may still fall within the ADA’s protection if others think that they do. Id. at § 12102(3). The statute prohibits discrimination because of disability. This includes failing to make reasonable accommodations for an employee and refusing to hire an applicant in order to avoid making such accommodations. An employer does not have to make a requested accommodation if it can show that doing so would “impose an undue hardship” on its business. Id. at § 12112(b)(5)(A).

The Equal Employment Opportunity Commission filed the Volvo lawsuit on behalf of a job applicant claiming disability discrimination. The defendant allegedly rescinded a conditional offer of employment in early 2015, after learning that the applicant was undergoing addiction treatment. While the use of illegal drugs is not considered a disability under the ADA, “participating in a supervised rehabilitation program” while refraining from illegal drug use is. Id. at § 12114. According to the EEOC’s complaint, the applicant ceased the use of illegal drugs and began participation in a supervised treatment program in 2010. The treatment included the use of suboxone, which the applicant reportedly disclosed to the defendant. This allegedly led to the revocation of the offer. The parties reached a settlement in January 2018.

conversationFederal and state laws protect New Jersey employees against discrimination on the basis of disability and other factors. The federal Americans with Disabilities Act (ADA) of 1990 prohibits discrimination and requires employers to provide “reasonable accommodations” for employees with disabilities. One area of ongoing dispute in employment law involves whether employers must provide reasonable accommodations to employees who are pregnant or have recently given birth. The ADA does not specifically mention pregnancy or related conditions. The New Jersey Law Against Discrimination (NJLAD), however, specifically requires employers to make reasonable accommodations available in cases of disability, pregnancy, and religious practices. The “reasonableness” of a particular accommodation can be a subject of dispute under both New Jersey disability discrimination laws and federal disability discrimination laws. A new law in New York City, which will take effect in October 2018, will require employers to engage in “cooperative dialogue” with employees who are requesting an accommodation for multiple possible situations. Int. No. 804-2015-A (NYC, Jan. 19, 2018).

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion, sex, and other factors, with “on the basis of sex” defined to include pregnancy. 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). The statute does not address accommodations for religious observances or the various needs associated with pregnancy and childbirth. The ADA includes a failure to provide reasonable accommodations within its list of discriminatory practices, with an exception if the accommodation “would impose an undue hardship on the operation of the business.” Id. at § 12112(b)(5)(A). It defines “disability” to include a range of “physical or mental impairment[s].” Id. at § 12102(1).

The NJLAD prohibits discrimination in employment on the basis of disability, religion, sex, pregnancy, and multiple other factors. N.J. Rev. Stat. § 10:5-12(a). The definition of “disability” is similar to that of the ADA and includes various conditions “caused by bodily injury, birth defect or illness.” Id. at § 10:5-5(q). An employer violates the NJLAD by denying employment to “an otherwise qualified person” because of a disability, unless the employer can “clearly show[]” that a person’s particular disability “would prevent such person from performing a particular job.” Id. at § 10:5-29.1.

fire truckIn New York City and New Jersey, employment laws prohibit discrimination on the basis of race and multiple other factors. Race discrimination in employment remains a serious problem all over the country, despite advances in the past 50 years. Some organizations, which were once quite open about their willingness to discriminate on the basis of race, still retain elements of that culture to this day. A putative class action filed late last year in a Manhattan federal court alleges that the Fire Department of New York (FDNY) has a long history of discrimination against African American employees and job applicants. Richardson, et al. v. City of New York, No. 1:17-cv-09447, complaint (S.D.N.Y., Dec. 1, 2017).

The New York City Human Rights Law (NYCHRL) prohibits employers from discriminating against employees and job applicants “because of the actual or perceived…race…of any person.” N.Y.C. Admin. Code § 8-107(1)(a). This provision is similar to those found in federal law and in state laws all over the country, including New Jersey race discrimination laws. The federal Civil Rights Act of 1991 protects the right to “make and enforce contracts” on equal terms, regardless of race, which includes employment contracts. 42 U.S.C. § 1981. A government employer, such as a city, state, or federal agency, that engages in employment discrimination on the basis of race may also be liable for civil rights violations under 42 U.S.C. § 1983.

The Richardson complaint describes a history of race discrimination in the FDNY, claiming that only “token integration” started in the 1960s. Richardson, complaint at 1. It notes two prior class actions alleging race discrimination against the FDNY in the hiring of firefighters. The first involved discrimination against African American and Hispanic firefighter applicants. Vulcan Society of New York City Fire Dep’t, Inc. v. Civil Serv. Comm’n, 490 F.2d 387 (2d Cir. 1973). The injunction issued by the court expired in 1977, and the city allegedly resumed discriminatory hiring practices for firefighters. The U.S. Department of Justice eventually filed suit, resulting in a ruling “that the FDNY’s hiring procedures discriminate against black applicants.” United States v. City of New York, 683 F.Supp.2d 225, 250-51 (E.D.N.Y 2010).

LGBT flag mapThe New Jersey Law Against Discrimination (NJLAD) is among the most expansive anti-discrimination statutes in the country, protecting employees from discrimination on the basis of multiple factors, including sexual orientation. Title VII of the federal Civil Rights Act of 1964 has far fewer expressly protected categories. Some federal courts have ruled in favor of plaintiffs claiming sexual orientation discrimination under Title VII, finding that the statute’s prohibition on sex discrimination encompasses sexual orientation as well. Other courts have ruled that sexual orientation discrimination is not discrimination on the basis of sex within Title VII’s meaning. The U.S. Supreme Court rejected a petition for certiorari in late 2017 that raised this question, Evans v. Georgia Regional Hospital. Since a conflict exists among lower court rulings on this issue, it is likely that the Supreme Court will accept a case at some point in the future.

The NJLAD states that an employer commits an unlawful employment practice by discriminating on the basis of “affectional or sexual orientation.” N.J. Rev. Stat. § 10:5-12(a). Title VII only mentions five factors:  “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The U.S. Supreme Court has clarified the legal meaning of “sex” under Title VII in several rulings. This includes recognition of sexual harassment and “sex stereotyping” as forms of unlawful sex discrimination.

Many Title VII lawsuits alleging sexual orientation discrimination have cited the “sex stereotyping” ruling, which held that “assuming or insisting that [employees] matched the stereotype associated with their [sex]” could be evidence of sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). Another commonly cited decision ruled in favor of a male plaintiff alleging sexual harassment by male co-workers, reportedly based on their negative perceptions of the plaintiff’s sexual orientation. The court held that harassment does not need to “be motivated by sexual desire” to constitute sexual harassment, and therefore sex discrimination, under Title VII. Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80 (1998).

metal ammunitionNew Jersey prohibits employers from discriminating against employees and job applicants on the basis of multiple factors established by federal and state laws, and by municipal laws in some places. The New Jersey Law Against Discrimination (NJLAD) offers a broader range of protections than its federal counterpart, Title VII of the Civil Rights Act of 1964. Across the Hudson River, the New York City Human Rights Law (NYCHRL) offers even greater protections, but New Jersey is catching up in many ways. A law that recently took effect in New York City prohibits employers from asking job applicants about their salary history, and from making certain employment decisions on the basis of such information. Similar laws have recently taken effect in California, Massachusetts, and Oregon. The New Jersey Legislature also passed a similar law in 2017, but the governor vetoed it. Despite this setback, the circumstances of the New Jersey discrimination bill’s passage offer hope for a future legislative session.

The purpose of employment anti-discrimination law is to protect groups of people who might be vulnerable to unfair practices by employers because of historical patterns of inequality or current negative and inaccurate stereotypes. Both state and federal laws in New Jersey prohibit discrimination in employment on the basis of race, religion, color, national origin, or sex. N.J. Rev. Stat. § 10:5-12(a), 42 U.S.C. § 2000e-2(a)(1). The NJLAD includes additional protected categories like age and disability that may be found in other federal statutes. See, e.g. 29 U.S.C. § 623, 42 U.S.C. § 12112. In other areas, such as marital or civil union status, sexual orientation, and gender identity, the NJLAD goes beyond any protection expressly provided under federal law.

Laws at the state and federal levels generally require employers to pay employees the same wage for performing the same job, although much litigation has occurred over the question of determining the similarity of people’s jobs. The new law in New York City addresses discrimination based on a person’s salary history. An employer that asks an applicant about salary history may decide to hire a person solely because they have the lowest prior salary of all of the applicants, and then they might try to pay that person less than their coworkers. The recent amendment to the NYCHRL, which took effect on October 31, 2017, makes it an unlawful employment practice to inquire about salary history during the job application process, or to base a new hire’s salary and other terms of employment on their past wages. See N.Y.C. Admin. Code § 8-107(25).

computerAnti-discrimination laws in New Jersey, at the federal level, and in other states around the country prohibit discrimination in employment based on numerous factors, including sex. These prohibitions on sex discrimination include sexual harassment. The past few months have seen a possibly unprecedented series of allegations and revelations about sexual harassment in the entertainment industry and in Washington, D.C. Even before that, however, people involved in technology startups in California and elsewhere were coming forward with allegations of sex discrimination and sexual harassment. Many of these involved female entrepreneurs and male investors. These cases often present a legal quandary for people claiming sexual harassment, since the types of employer-employee relationships covered by anti-discrimination statutes are not always present in the entrepreneurship model. New Jersey is also home to many startup businesses, making this an important issue for New Jersey sexual harassment claimants as well.

The New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 prohibit sexual harassment as a form of sex discrimination. Sexual harassment consists of a range of unwelcome behaviors of a sexual nature, including remarks, jokes, overtures or advances, direct requests for sexual contact, and unwanted touching or assault. This type of conduct constitutes unlawful sex discrimination when an employer makes sexual activity a condition of employment, or when the offensive conduct creates a hostile working environment for an employee. Employers are often held vicariously liable for sexual harassment by a supervisor, manager, executive, or director against someone who works in a subordinate position. If the alleged harasser is a co-worker, the employer may be liable if they are aware of the harassment but fail to take reasonable measures to address it.

Startup companies are, broadly speaking, businesses in the very early stages of development that offer some sort of novel product or service. No distinct definition of “startup” exists, but perhaps a key feature of a startup is that its operating expenses exceed its income—if any income exists—and its business model is at least partly unproven. Many startups therefore rely on investors to fund initial development and growth. Venture capitalists (VCs) are in the business of investing in startups, providing money for the company and, often, mentoring for the entrepreneurs. Many of the recent allegations of sex discrimination and sexual harassment originate in interactions between entrepreneurs and VCs.

cannabisIn 2009, the New Jersey Legislature authorized the possession and use of small amounts of marijuana for medical purposes with a doctor’s prescription. Federal law, however, still classifies marijuana as a controlled substance with no recognized medical use. This has led to considerable uncertainty in the area of employment law, such as whether states that allow medical marijuana use also protect workers against discrimination based on drug use that, while legal under state law, still violates federal law. So far, no New Jersey court has found that state antidiscrimination law covers lawful medical marijuana use, but at least one such claim is currently pending in state court. The defendant in that lawsuit is arguing that the federal Controlled Substances Act (CSA) preempts any state laws addressing employment discrimination claims. A federal court in Connecticut recently rejected a similar argument in Noffsinger v. SSC Niantic Operation Company, No. 3:16-cv-01938, ruling (D. Conn., Aug. 8, 2017). While this ruling does not directly affect New Jersey courts, it could have an impact on future cases.

The New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA), N.J. Rev. Stat. § 24:6I-1 et seq., establishes procedures for medical professionals to prescribe marijuana. It also exempts qualifying medical professionals and their patients from liability under the state’s criminal and civil laws dealing with marijuana. Id. at §§ 2C:35-18, 24:6I-6. It does not specifically mention employment. A pair of bills introduced in the New Jersey Legislature, A2482 and S2161, would add specific employment protections for medical marijuana patients, but they have never received hearings.

Under the Supremacy Clause of the U.S. Constitution, federal law generally takes precedence over conflicting state laws. The CSA’s classification of marijuana as a Schedule I controlled substance, 21 U.S.C. § 812(c)(I)(c)(10), has caused much confusion in this regard. Preemption by federal law is a major part of the defendant’s argument in a lawsuit filed by a medical marijuana patient alleging violations of the New Jersey Law Against Discrimination (NJLAD). Wild v. Carriage Services, No. L-000687-17, complaint (N.J. Super. Ct., Bergen Cty., Jan. 30, 2017). In a motion to dismiss filed in February 2017, the defendant in Wild argues that the NJCUMMA directly conflicts with the CSA. Courts have dismissed several similar lawsuits recently on procedural grounds that do not address the merits of the medical marijuana claims. See Barrett v. Robert Half Corp., No. 2:15-cv-06245, order (D.N.J., Feb. 21, 2017); Wiltshire v. Breunig, et al, No. L-000052-16, complaint (N.J. Super. Ct., Cape May Cty., Feb. 5, 2016).

volunteersNew Jersey employment laws protect workers’ rights in multiple areas, including wages and hours of work, discrimination and harassment, and retaliation for reporting suspected wrongdoing by an employer. Many of these laws apply specifically to “employees,” but no single definition of “employee” exists. Some statutes only cover paid employees, while others also apply to independent contractors, unpaid interns, or volunteers. The legal status of unpaid workers, including both interns and volunteers, has been the subject of multiple court battles. The New Jersey Appellate Division recently held that the state’s whistleblower statute, the Conscientious Employee Protection Act (CEPA), does not apply to unpaid volunteers. Sauter v. Colts Neck Volunteer Fire Co. No. 2, No. A-0354-15T1, slip op. (N.J. App., Sep. 13, 2017). In light of this decision, it is worth reviewing how various employment statutes in New Jersey view unpaid volunteers and interns.

“Volunteer” Versus “Intern”

Some laws make a distinction between volunteers and interns. Generally speaking, an internship provides some form of educational benefit to the worker, possibly including course credit at an educational institution, and it may be paid or unpaid. Even when an internship is unpaid, the worker is considered to gain an educational benefit. A volunteer position, on the other hand, is usually undertaken for primarily altruistic reasons, or at least without the expectation of any specific return.

protestersFederal and state anti-discrimination laws protect workers against discriminatory employment practices based on numerous factors. The New Jersey Law Against Discrimination (NJLAD) identifies more protected categories than the equivalent federal statute, Title VII of the Civil Rights Act of 1964. Several recent news stories have involved employers who terminated workers because of political views that they expressed. In one case, an employee of a tech company lost his job after posting a memorandum criticizing the company’s gender diversity efforts on a company message board. In August 2017, several companies fired employees for participating in a rally in Virginia that prominently displayed symbols associated with explicitly racist organizations. People have also had their employment threatened or terminated for views and activities on the opposite side of the political spectrum. This raises questions about how, or whether, anti-discrimination laws protect workers against adverse actions by their employers because of their political views.

The terms “political views” and “political speech” have no distinct definitions for legal purposes. They broadly refer to individuals’ opinions on matters of public concern, as well as statements they make and activities in which they participate that involve those matters. “Speech” can include more than just spoken statements in this context, such as written statements and participation in advocacy.

The First Amendment to the U.S. Constitution prohibits the government from punishing people based on the content of their speech, or saying things the government does not like. Private employers are not bound by this restriction. Public employees might be able to assert free-speech claims, but private employees cannot. The National Labor Relations Act (NLRA) prohibits private employers from taking adverse action against employees for speech or advocacy related to labor organizing. Whistleblower protection laws, like the Conscientious Employee Protection Act (CEPA), protect employees who speak out about legal violations by their employers.

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